Ross v. Johnson ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-11151
Summary Calendar
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CLYDE ROSS,
Petitioner-Appellee,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(5:97-CV-221)
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September 2, 1999
Before JONES, BARKSDALE, and DENNIS, Circuit Judges.*
PER CURIAM:
Appellee Clyde Ross was convicted of attempted capital
murder and sentenced to 99 years imprisonment in 1981. After
exhausting his state court remedies, Ross filed this section 2254
petition alleging, inter alia, that appellate counsel provided
constitutionally deficient representation by failing to inform him
that his conviction had been affirmed on direct appeal and that he
had a right to seek discretionary review with the Texas Court of
Criminal Appeals. The district court determined that Ross was
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
entitled to file an out-of-time petition for discretionary review
and dismissed his section 2254 petition without prejudice. The
state of Texas has filed a timely appeal. We vacate and remand.
The state argues that there is no proof in the state and
federal court records of Ross’s central allegation, i.e., that his
attorney failed to inform him that his conviction had been affirmed
on direct appeal and that the timetable had begun running for a
petition for discretionary review. Instead, the district court
assumed this fact in ruling that Ross was entitled to relief.
Further, the state argues that the relief Ross seeks is Teague-
barred, because he seeks recognition of a new constitutional rule
on habeas review. Teague v. Lane, 489 U.S. 288 (1989).
There may be an interesting constitutional issue in this
case, if the facts are as Ross alleges and if the remedy he seeks
is not barred by Teague. According to the Supreme Court, Ross had
no right to counsel in the preparation of a petition for
discretionary review. Ross v. Moffitt, 417 U.S. 600 (1974). This
court, in a case where the state waived the Teague bar, has held,
however, that a petitioner does have the right to counsel if the
state requests and receives a grant of discretionary review in the
Texas court of criminal appeals. Blankenship v. Johnson, 118 F.3d
312 (5th Cir. 1997) (but Blankenship expressly declined to rule on
the converse factual situation, which is before us). Adding to the
complexity, the U.S. Supreme Court has just held that a prisoner
must exhaust remedies in state court through a discretionary review
procedure before going into federal court. O’Sullivan v. Boerckel,
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119 S. Ct. 1728, 1734 (1999). Whether this decision has some
implication for the right to counsel, which may or may not
implicate a separate Teague bar, is not clear.
Because the district court’s rulings on the critical
factual and Teague issues are absent from the record, we vacate and
remand for it to reconsider this petition.
VACATED and REMANDED.
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